UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
September 10, 2012
RBS SECURITIES INC.,
PLAZA HOME MORTGAGE, INC.,
The opinion of the court was delivered by: Hon. Mitchell D. Dembin U.S. Magistrate Judge
ORDER GRANTING MOTION TO COMPEL [ECF NO. 3]
Before the Court is Plaintiff's motion to compel compliance with a subpoena duces tecum issued to Defendant under Fed.R.Civ.P. 45 in connection with federal civil litigation pending in the Western District of Wisconsin. (See ECF No. 1-2, Exh. A). Defendant is not a party to that action but is located in this District. Accordingly, the subpoena was issued by this Court. (Id. at Exh. C). This Court has jurisdiction to hear this motion pursuant to Rule 45(c)(3).
The subpoena requires Defendant to produce certain loan files. Defendant has refused to produce the files unless Plaintiff complies with California Code of Civil Procedure, section 1985.3 ("CCP 1985.3"). CCP 1985.3 imposes upon the party seeking the records an obligation to notify the consumer and provide an opportunity to object to disclosure.
Plaintiff asserts that CCP 1985.3 does not apply to federal proceedings and federal subpoenas. By its terms, CCP 1985.3 applies to a person who causes "a subpoena duces tecum to be issued or served in connection with any civil action or proceeding pursuant to this code . . . ." CCP 1985.3(a)(3) (emphasis added). The subpoena in this case was not issued pursuant to the California Civil Code. See McKinney v. Department of the Treasury, 1996 WL 775922 at n.1 (C.D. Cal. Sept. 25, 1996).
Some courts have wandered into the morass of determining whether CCP 1985.3 creates a privilege under California law and whether that privilege should be accorded some recognition in federal proceedings. See, e.g. Corser v. County of Merced, 2006 WL 253622 (E.D. Cal. Aug. 31, 2006): Robinson v. Kia Motors America, Inc., 2011 WL 2433369 (E.D. Cal. June 13, 2011). This Court instead will credit the plain language of the statute regarding its scope. A subpoena duces tecum issued under the Federal Rules of Civil Procedure is not subject to CCP 1985.3 which, by its terms, is limited to subpoenas issued under the CCP.
To the extent that any particular borrower has a privacy interest in the file pertaining to his or her loan, this Court finds that any such interest is sufficiently protected by the protective order outstanding in this case. (ECF No. 1-2, Exh. B).
Plaintiff's motion to compel is GRANTED. Defendant is ORDERED to produce responsive records no later than September 21, 2012, absent agreement of the parties or further order of this Court.
IT IS SO ORDERED.
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